owners in the street or highway. That principle was laid down in a case where a street railway was involved and the facts were in many respects parallel to the facts in the instant case. While it is stated in the opinion written by Judge Ranney that no compensation would have been due to the abutting owner under ordinary circumstances of construction and operation of a street railroad, it appeared that the tracks were laid, not in the center of the street, but alongside of the abutting property where they would constitute an obstruction and an interference. It was also very forcefully pointed out that the interests of the public were being enlarged and the interests of the property owner diminished, and that this could only occur upon compensation being paid to the extent of the injury to the property owner. It was therefore held that such interests of the adjoining lot owner are properly protected by the Constitution and are subject to be taken or appropriated only upon condition that compensation be made. This decision was approved and followed in Scioto Valley R. Co. v. Lawrence, 38 Ohio St. 41, 43 Am. Rep. 419. In Cincinnati & S. G. Ave. Street R. Co. v. Cumminsville, supra, the street railroad was operated by horse-drawn cars. In Scioto Valley R. Co. v. Lawrence the right to operate steam railroads over one of the streets of the city of Portsmouth was involved, and the following syllabus was declared:

"1. Where the construction of a railroad in a street of a city will work material injury to the abutting property, such construction may be enjoined, at the suit of the owners, until the right to construct such road in the street shall first be acquired, under proceedings instituted against such owners as required by law for the appropriation of private property.

"2. In such case it is immaterial whether the fee is vested in the city or in the abutting owners, so long as it is held upon the same defined uses. Cincinnati & S. G. Ave. Street

R. Co. v. Cumminsville, supra, approved and followed."

In the opinion, Judge White, after stating the usual purposes for which streets and highways are appropriated and dedicated, and after referring to the power of the public to regulate and modify the manner of using the streets, made the following pertinent declaration: "But where these new structures, and new modes of travel, devolve additional burdens upon the land, and materially impair the incidental rights of the owner in the highway, they require more than the public has, or can grant, and the deficiency can only be supplied by appropriating the private right upon the terms of the Constitution."

The opinion in that case further calls attention to the fact that the legislature, after the decision of the Cumminsville Case, made provision for street railroad companies, and fixed the terms and conditions thereof, but that no similar provision had been made concerning steam railroads. From the foregoing authorities, as well as upon principle, the conclusion must be reached that a steam railroad upon streets and highways constitutes an added burden per se, which requires compensation to abutting property owners.

We have referred only to the Ohio authorities, but the authorities of other states declaring the same proposition are numerous and uniform.

In the instant case it is shown that the steam railroad has occupied Sandusky street in Fostoria for more than sixty-five years. It is conceded that so long as the rail, road occupies its present location the property owner may not complain, and the question arises therefore, first, whether there is any power to change the location without the consent of the property owner; and, second, whether compensation for impaired access which is of a different or greater character than that already existing must first be made. Under the authority of Scioto Valley R. Co. v. Lawrence,

supra, a steam railroad can be located upon a street after franchise being granted by the city council and after compensation paid to the adjoining owner, and the instant case is no different from that case, except upon the question of relocation. In Snyder v. Pennsylvania R. Co. 55 Pa. 340, the court held that the city authorities might authorize a relocation of railroad tracks then existing in the city streets by removing the same from the center of the street, and placing the same near the lot line, and declared that the same was damnum absque injuria. A careful reading of the opinion in that case, however, shows that no element of obstruction or interference was discussed. This case standing alone would not be a decisive authority, but the case of Pennsylvania S. Valley R. Co. v. Walsh, 124 Pa. 544, 10 Am. St. Rep. 611, 17 Atl. 186, is directly in point and decisive. We quote the syllabus of that case:

"1. Where a railroad is laid down upon a public street and, though at grade, is so constructed with reference to the property of an abutting owner, that by its operation in a lawful manner access to the property, if not actually cut off, is rendered dangerous, the company is liable for consequential injuries under § 8, article 16, of the Constitution.

"2. It would be an unsavory technicality to hold that a railroad laid down by the curb in front of a man's door, with trains constantly passing and repassing, did not interfere with his access to his house, and was not an injury caused by the construction of the road. Per Mr. Chief Justice Paxson, distinguishing Pennsylvania R. Co. v. Lippincott, 116 Pa. 472, 2 Am. St. Rep. 618, 9 Atl. 871, and Pennsylvania R. Co. v. Marchant, 119 Pa. 541, 4 Am. St. Rep. 659, 13 Atl. 690.”

supra, there was no injury to the property by reason of the erection and construction of the road, and we held that the constitutional provision was not intended to apply to injuries which were the result merely of the operation of the road, as distinguished from its construction, and that in such case there could be no recovery for the annoyance of smoke, noise, and cinders, etc., caused by the running of the company's trains, unaccompanied with negligence; in other words, that the injuries resulting from the exercise of a lawful business, in a lawful manner, without negligence and without malice, are damnum absque injuria."

In the opinion there is further discussion showing that that case was in many respects parallel to the instant case. It was claimed that by reason of repaving the street a benefit resulted to the property owner, by making the property more accessible from the street, just as it is claimed in the instant case that the tracks will be lowered by the repaving, thereby facilitating the driving of trucks and other vehicles over the tracks and onto the property.

In Jones v. Erie & W. Valley R. Co. 151 Pa. 30, 17 L.R.A. 758, 31 Am. St. Rep. 722, 25 Atl. 134, we find an authority quite definitely in point. In that case it is declared that a railroad company might lawfully enter upon and cross a public highway without liability so long as it complies with terms imposed by the municipality and keeps within the limitation that no additional servitude be imposed upon the land covered by the public easement, but that, if it exceeds the easement and imposes a new servitude upon the land occupied by the public easement, the owner is entitled to compensation. The court cited Snyder v. Pennsylvania R. Co. supra.

The abutting owner's contention that the steam railroad, having once been located, cannot be relocated, must be overruled, and the sounder rule must be declared to be that the railroad company has a franchise to

use the street, which is permanent in its nature, and that the general rights, which the property owner originally had, have been compensated. The general damages which flow from such use of the highway and the added burden thereto will be presumed to have been already compensated. The property owner, therefore, is entitled at this time to be compensated only for such taking as results from the special obstruction and interference resulting from the changed location.

Eminent domain -location of railroad in street.

This court has repeatedly deelared that the use to which the streets may be put, and the comparative dangers and inconveniences and the relative public benefits and private disadvantages that may result from the changed use of streets, are political questions for the consideration of the legislative branch of the municipal government, which is the sole judge of the propriety, as well as of the necessity, of the improvement, and that such decision, when not transcending its powers, nor induced by fraud, is not subject to judicial revision. This was so declared in Wabash R. Co. v. Defiance, 52 Ohio St. 262, 40 N. E. 89, and has been more recently declared in Sargent v. Cincinnati, 110 Ohio St. 444, 144 N. E. 132.

The city has already determined the political question and has ordered the railroad tracks to be relocated. The judicial question yet remains to be disposed of relating to the power to further proceed with that improvement until compensation has first been made to the abutting owner. Under the foregoing authorities, and many others which might be cited, we have reached the conclusion that an agreement must be reached whereby the damages to the abutting property owner can be adjudged, or the same determined, under § 19 of article 1 of the Ohio Constitution, by the award of a jury.

Second. It is claimed by the city that inasmuch as the property

owner has made a claim for his damages under § 6950, General Code, he is estopped from further interfering with the progress of the improvement and is remitted to his claim for damages. Upon this point the city cites Wabash R. Co. v. Defiance, supra, and Farber v. Toledo, 104 Ohio St. 196, 135 N. E. 533. These cases only decide that a failure to make the claim within the time limited amounts to a waiver of the claim for damages, and that the statute which places a limitation of two weeks upon the filing of a claim is not in contravention of § 19, article 1, of the Constitution. Assuming that those cases settle that proposition, they cannot be authority for denying the property owner his remedy in the instant case, because he filed his claim within the time limited, but the city has not at any time allowed or paid the claim, or made any provision looking to the ascertainment of the amount of his damages. It must therefore be held that the abutting owner is not precluded from asserting his right to have his compensation determined in advance of the improvement.

Injunction-to prevent intercess to property.

ference with ac

The third and last question for determination is the status of the railroad company by reason of having been dismissed from the case several months in advance of the final determination of the case in the court of common pleas, the case having thereafter been taken to the court of appeals on appeal. It is quite clear that, when the trial court sustained the demurrer of the railroad company and dismissed it from the case, and the plain- Appeal-final

tiff declared that he order-sustaining demurrer. did not desire to further plead, such procedure constituted a final order as to the railroad company, and it was not thereafter a party to the proceeding, in the absence of error proceedings. within seventy days or an appeal within thirty days. It can make no difference, however, in the final determination of this case, because the

city is a party to the proceeding in this court and an injunction against the city further proceeding to carry out the improvement until compensation is paid is necessarily a bar to further progress on the part of the railroad company.

The judgments of both the lower courts must therefore be reversed, and the cause remanded to the Court

of Common Pleas, with instruction to restrain the city and county from further proceeding without first ascertaining and paying to the abutting property owner the damages for obstruction to and interference with access.

Matthias, Day, Allen, Kinkade, and Robinson, JJ., concur.

Generally, as to right of abutting owner to compensation for railroad in street under constitutional provision against damaging property for public use without compensation, see the annotation in 22 A.L.R. 145 [Eminent Domain, § 243].

The present annotation, as the title indicates, is concerned only with cases involving the question whether taking or damaging for which compensation must be made may be predicated of the change of the location of the tracks and roadbed from their original location in the street or highway, and is not concerned with the right to compensation on account of original location and construction. It may be observed in this connection, however, that in some circumstances an abutting owner may be entitled to damages for special injuries on account of the location of the track, or the manner in which it is constructed, even though the railroad or street railway is not in itself considered an additional burden. See 10 R. C. L. 102 (Eminent Domain, § 88).

In the reported case (GHASTER V. FOSTORIA, ante, 1439), it was held that where a steam railroad is located in and along a street, near the center thereof, and the city, through its council, determines to relocate the line of said railway and place the same so near to the property line of an abutting owner that trucks and other ordinary vehicles standing or passing along said premises would be struck by passing trains, such change of lo

cation results in an obstruction to and interference with access to such property, and is a "taking of private property" for public use, and the property owner is entitled to first have compensation in money, or to be secured by a deposit of money for such taking before such relocation is made, the same to be assessed by a jury.

Where a railroad track was moved from the side of a street to the center thereof, an abutting owner on the opposite side of the street, whose fee was thus encroached upon, may recover compensation therefor, and the fact that the track was maintained on the side of the street for such a length of time as to bar a claim for damages which otherwise might have been maintained by reason of such occupancy in no way affects the owner's right to compensation for real estate taken as the result of the removal. Chicago, I. & L. R. Co. v. Johnson (1910) 45 Ind. App. 162, 90 N. E. 507.

But in Snyder v. Pennsylvania R. Co. (1867) 55 Pa. 340, referred to in the Ghaster Case, the removal of a railroad originally built in a street under the direct authority of the state, for its own convenience and benefit, by subsequent purchases nearer to, but without touching, an adjoining owner's lot, and without taking it out of the boundary of the street, was held to be damnum absque injuria; the railroad company, acting by public authority, had the same right as the public, to whom the street belonged for purposes of travel and transportation,